Spoilation of evidence, also known as destruction of evidence, can be performed on evidence of all types–paper records, electronic records, hard drives, cell phones, social media platforms such as Instagram, etc. Spoliation can be negligent or intentional and can be committed by the person or persons bringing the injury claim or the at fault person or persons, or third parties such as witnesses or insurance companies. The remedy for spoliation of evidence can be in the form of sanctions, limiting jury instructions or an adverse inference from the destruction of the evidence that the jury can consider, or a rebuttable presumption.

The duty to preserve evidence in a case can be statutory, pursuant to a contract, or it can arise after a proper discovery request. It can also arise from a statute or law that requires the preservation of evidence.

The basic elements of a spoliation of evidence claim are: 1) existence of a potential civil action, 2) a legal or contractual duty to preserve evidence, 3) destruction of that evidence, 4) significant impairment in the ability to prove the lawsuit, a connection between the evidence destruction and the inability to prove the lawsuit, and 6) damages.

In personal injury and wrongful death cases, often the evidence is a video that captures the entire slip and fall or auto accident, for example. The video may be erased, destroyed or not preserved. It is critical in any personal injury case for the attorney representing the injured party to make a demand to the other side to preserve and not destroy all such evidence, and obtain all such evidence as quickly as possible.

It is important that if you are injured in an accident, you consult with an attorney immediately to ensure any potential evidence is preserved.

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